Francis T. PROCTOR, Appellant, v. Sam A. ANDERSON, Superintendent, District of Columbia Jail, Appellee.
No. 19342
United States Court of Appeals District of Columbia Circuit.
Argued April 29, 1966. Decided May 12, 1966.
361 F.2d 557
Aрpellant applied to the Board of Zoning Adjustment for a special exception to permit use of the premises аt 2225 R Street, N.W., for a school of interior design. The Board denied the application after concluding that:
[A] use of this magnitude in this residеntial area will not be in harmony with the general purpose and intent of the Zoning Regulations and Map and will tend to adversely affеct the use of neighboring property * * *.
The District Court upheld the decision of the Board and this appeal followed.
Upon сonsideration of the entire record we find that there was substantial evidence to support the Board‘s decision. Accordingly, the judgment of the District Court is affirmed. However, we are constrained to point out inadequacies in the Board‘s findings of fact in this cаse. For example, one of appellant‘s principal contentions before the Board was that the surrounding area, although zoned R-3, was no longer devoted to residential use and for that reason a school located on the premises in question would not adversely affect the neighborhood. The Board‘s opinion did not examine the various uses of property in the neighborhood in order to rebut this theory, but merely contented itself with the naked conclusion that the area was residential. Similar fаilures to explain fully the underlying facts were evident with respect to the Board‘s conclusions concerning the effect upon the neighborhood of the number of students attending the school and of the proposed conversion of a yard into a parking compound. These inadequacies forced this court to search the record for evidence to support the Board‘s conclusions and thereby greatly impeded our review of the case. Cf., e. g., Saginaw Broadcasting Co. v. FCC, 68 App.D.C. 282, 287-289, 96 F.2d 554, 559-561 (1938), cert. denied, 305 U.S. 613 (1938); Washington Gas Light Co. v. Baker, 88 U.S.App.D.C. 115, 127, 188 F.2d 11, 23 (1950), cert. denied, 340 U.S. 952 (1951); Robey v. Schwab, 113 U.S.App.D.C. 241, 307 F.2d 198 (1962).
Affirmed.
Danaher, Circuit Judge, dissented.
Mr. Theodore Wieseman, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before EDGERTON, Senior Circuit Judge, and DANAHER and WRIGHT, Circuit Judges.
ORDER
PER CURIAM.
This case came on to be heard on the record on appeal from the Unitеd States District Court for the District of Columbia and was argued by counsel.
It appearing that the trial judge referred the question of voluntаriness of the confession to the jury without first making that determination himself.
It is ordered that this case be, and it is hereby, remanded to the District Cоurt for hearing on voluntariness of the confession admitted in evidence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
DANAHER, Circuit Judge (dissenting).
This appellant has had his day in court, and I dissent from the ordеr of remand. If the overburdened judges of the District Court are to be required, once again, to conduct a hearing in this case, I want my views before them.
This appellant, formerly employed at a small hotel on 16th Street, gained entrance about midnight on May 17, 1963. With a hammer he dangerously beat a woman and tried to strangle her with telephone wires he had cut. She managed to call for help and informed the responding police that her assailant was “Tony Washington” as he was known to her.1
Officers received from Proctor‘s mother a photograph of the appellant. At a hearing on his motion to suppress, he testified it was not his picturе, but it was sufficient, supplemented by good police work, to lead to Proctor‘s arrest. Adopting tactics of deceitful masquerade, he sought to escape identification. He showed the officers documents bearing the name of Don Ameche Miller, included among which were a North Carolina driver‘s license, a D. C. unemployment card and a draft registration card. He volunteered to cooperate with police as he sought to throw them off the track.
When appellant was taken to his mother‘s apartment, his mother and stepfather both identified Proctor. He said “Woman, I never seen you before in my life.” Thereupon placed under arrest, the appellant‘s own Social Security card was found in his wallet. Proctor confessed, and his counsеl sought to suppress that statement solely on Mallory grounds. As both the majority and dissenting opinions2 so obviously demonstrate, this court on June 25, 1964 discussed only and decided the Mallory issue against Proctor. Although Jackson v. Denno3 had comе down on June 22, 1964, we gave that case no treatment whatever. Proctor at no stage of the proceedings had sought a hеaring and determination on the issue of voluntariness of his confession.4
Two weeks later, appellant filed a petition for rеhearing en banc. There was no suggestion whatever of a claimed Jackson v. Denno issue. On October 7,
Meanwhile, one month before the Supreme Court denied certiorari, Proctor raised a Jackson v. Denno ground when he filеd here his “Supplemental Petition for Rehearing en Banc.” This time, and for the first time, he claimed the District Judge had erred in submitting to the jury the issuе of voluntariness of the confession. We denied that supplemental petition.6
No appeal was taken from that ordеr of denial, and as noted, one month later the Supreme Court denied certiorari.
Not even one month thereafter, appellant again was back in the District Court. He petitioned for a writ of habeas corpus raising the very same grounds which had been set forth in his Supplemental Petition. The Government‘s return and answer, treating Proctor‘s pleading as a motion for relief under
Judge Youngdahl discharged the rule and ordered thаt the petition be dismissed. Not only could he see before him a record replete with contrived and repetitious reassеrtions of claims which had been disposed of by the judgments cited, but he was bound to rule in support of our public policy which favors thе establishment of certainty in legal relations.7 Surely he could not have anticipated that his competent judgment thus exercisеd was to be undone by the ad hoc decision now being entered despite the record of finality.
I submit there was no error, and I would affirm.